Gross Indecency (Offence) (Repealed)

This page was last substantively updated or reviewed January 2024. (Rev. # 97868)

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Gross Indecency
Section 161 of the Crim. Code
Election / Plea
Crown Election	Indictment
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
Indictable Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	5 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 161 [gross indecency]	Indictable Offence(s)			(under 14 years max)

Offences under s. 161 [gross indecency] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 161 [gross indecency]

When charged under s. 161 [gross indecency], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Fingerprints and Photos

A peace officer who charges a person under s. 161 [gross indecency] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Acts of gross indecency

161. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 157.

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Exception re acts in private between husband and wife or consenting adults

162 (1) Sections 160 and 161 do not apply to any act committed in private between

(a) a husband and his wife, or

(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.

Idem

(2) For the purposes of subsection (1),

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to the commission of an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or

(ii) if that person is, and other party to the commission of the act knows or has good reason to believe that that person is, feeble-minded, insane or an idiot or imbecile.

R.S., c. C-34, s. 158.

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The offence was repealed in 1987.

Proof of the Offence

Proving gross indecency under s. 161 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit performed an act; ☐ the act was with the complainant, either consensually or otherwise; ☐ "the acts committed are a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality which includes but is not limited to anal intercourse, fellatio and other homosexual acts between two male persons of any age, whether consenting or not."

Interpretation of the Offence

"Gross Indecency"

The term "gross indecency" was not defined within the Code.

The "indecency" of an act depends on its context, including time, place and circumstances. Similarly, "gross indecency" will depend on time, place, and circumstances. However, certain acts are "inherently indecent" where the "circumstances surrounding the act is immaterial."

Gross indecency has been described as "marked departure from decent conduct expected of the average Canadian in the circumstances that existed." The standard is strictly objective and should not be considered subjectively.

There is no requirement that gross indecency include "some actual physical contact between" the accused and victim. It only needs to involve some "personal relation", "association" or "union", which can include commission of the act in the presence of the victim. More specifically, this has been applied where the accused masturbated in the presence of the victim. As well as fellatio.

Sentencing Principles and Ranges

For general principles on sentence for sexual offences, see Sexual Offences

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 161	indictable election	5 years incarceration

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 161	any

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ranges

see also: Gross Indecency (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 161	If convicted under s. 161 , there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
Weapons Prohibition Orders	s. 161	Where there is a conviction under s. 161 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person". Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration. If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order	s. 161	Periods of imprisonment of 2 years or more for convictions under s. 161 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

History of Gross Indecency

1970 Criminal Code

Acts of gross indecency

157. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.
1953-54, c. 51, s. 149.

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Exception re acts in private between husband and wife or consenting adults

158 (1) Sections 155 and 157 do not apply to any act committed in private between

(a) a husband and his wife, or

(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.

Idem

(2) For the purposes of subsection (1),

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to the commission of an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or

(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile.

1968-69, c. 38, s. 7.

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1968-69

Criminal Law Amendment Act, 1968-69, c. 38, s. 7, replaced s. 141 with s. 149A as follows:

Exception re acts in private between husband and wife or consenting adults

149A. (1) Sections 147 and 149 do not apply to any act committed in private between

(a) a husband and his wife, or

(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.

Idem

(2) For the purposes of subsection (1),

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and

(b) a person shall be deemed not to consent to the commission of an act

(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or

(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile.

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This provision remained in force from April 1, 1955 to July 14, 1971.

1953-1954 Criminal Code

Acts of gross indecency

141 (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped...

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Criminal Code, 1927

Acts of gross indecency

206. Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any acts of gross indecency with another male person.

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Criminal Code, 1906

Acts of gross indecency.

206. Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person.

55-56 V., c. 29, s. 178.

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Criminal Code, 1892

Acts of gross indecency.

178. Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person.

53 V., c. 37, s. 5.

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